Texas Prosecutors Go Rogue – And Get Away With It!

By William Fisher

John Thompson spent 18 years in prison — 14 of them on death row — for crimes he did not commit. But as he was facing his seventh execution date, a private investigator hired by his lawyers discovered that scientific evidence of his innocence had been knowingly concealed by the New Orleans District Attorney’s office.

Thompson was eventually exonerated. He sued the prosecutors’ office, and won. A jury awarded him $14 million, one million for each year on death row. When Louisiana appealed, the case went to the U.S. Supreme Court. In the spring of 2011, in a controversial 5-4 decision, the Court ruled that the prosecutor’s office could not be held liable.

With Connick v. Thompson, the U.S. Supreme Court thus took away one of the only remaining means for the wrongfully convicted to hold prosecutors accountable for willful misconduct. The Prosecutorial Oversight Coalition charges that, “Although all other professionals, from doctors to airline pilots to clergy, can be held liable for their negligence, the Supreme Court has effectively given district attorney offices legal immunity for the actions of their assistants, even when an office is deliberately indifferent to its responsibility to disclose exculpatory evidence.”

That decision simply strengthens the case being made by The Innocence Project and its colleagues: The Coalition says Texas prosecutors stand an excellent chance of getting away with prosecutorial misconduct that can send innocent men and women to prison for long sentences – and even to death row – according to new legal research.

Researchers found that, from 2004 to 2008, courts ruled that prosecutors committed error in 91 cases. Of these, the courts upheld the conviction in 72 of the cases, finding that the error was “harmless.” In 19 of the cases, the court ruled that the error was “harmful” and reversed the conviction. From 2004 until November 2011, only one prosecutor was publicly disciplined by the Texas Bar Association, and this was from a case that arose before 2004.

The research was released in Austin by the Prosecutorial Oversight Coalition. It illustrates the lack of accountability and transparency for prosecutorial misconduct in Texas. The Austin event marks the second stop on a national tour organized by the coalition, which includes the death row exoneree John Thompson, who was stripped of $14 million in civil damages for prosecutorial misconduct by the U.S. Supreme Court in Connick v. Texas.

The Coalition includes the Innocence Project; the Veritas Initiative, Northern California Innocence Project’s prosecutorial accountability program; the Innocence Project of New Orleans; Voices of Innocence; and local partners, the Texas Center for Actual Innocence; and the Actual Innocence Clinic at the University of Texas School of Law.

“No one is disputing that prosecutors have tremendous responsibility, and the vast majority do a good job under difficult circumstances. But now that the Supreme Court has given prosecutors almost complete immunity for their actions, we need to develop systems of accountability for dealing with those prosecutors who violate their ethical obligations,” said Jennifer Laurin, Assistant Professor at the University of Texas law school.

The Texas research was conducted by the Veritas Initiative, which issued a groundbreaking report on prosecutorial misconduct in California last year.

California’s results were similar to those of Texas, buttressing the Innocence Project’s belief that rogue prosecutors represent a national problem.

For the Texas research, the group reviewed all of the published trial and appellate court decisions addressing allegations of prosecutorial misconduct between 2004-2008. To see what, if any, consequences prosecutors face for their misconduct, Veritas looked at Texas’ public attorney disciplinary records from 2004 to November 2011.

Of the 91 cases where error was found, improper argument and improper examination were the leading types of error found by the courts, but these errors rarely resulted in the court reversing the conviction. (Of the 36 instances of improper argument, only 3 were reversed. Similarly, of 35 instances of improper examination, only 3 were reversed. Courts were more likely to reverse in cases where prosecutors failed to turn over “Brady” material (information that pointed to the defendant’s innocence), which occurred in 8 of the cases, resulting in of the reversals. Misconduct was found most often in murder cases (28 % of the cases) and sex crimes (24% of the cases).

“As best we can determine, most prosecutors’ offices don’t even have clear internal systems for preventing and reviewing misconduct. But perhaps even more alarming is that bar oversight entities tend not to act in the wake of even serious acts of misconduct,” said Stephen Saloom, Policy Director of the Innocence Project, which is affiliated with Cardozo School of Law.

“We don’t accept this lack of accountability and oversight for any other government entity where life and liberty are at stake, and there’s no reason we should do so for prosecutors,” he added.

The Prosecutorial Oversight coalition notes that this review doesn’t begin to fully illustrate the scope of the problem. Almost all of the errors identified were of cases where defendants went to trial (only 3% of Texas criminal cases according to 2010 data) and had access to an attorney who raised the error on appeal.

The Courts declined to directly address the issue in many of the cases where the issue was raised. Additionally, many opinions are not in writing and many aren’t published. Furthermore, the distinction between harmful and harmless is problematic because it doesn’t illustrate how serious the misconduct was, merely that the court determined that it wouldn’t have affected the ultimate outcome of the trial.

“Most prosecutorial misconduct is not intentional, but we know from John Thompson’s and Michael Morton’s cases that when it happens, the consequences can be devastating,” said Cookie Ridolfi, professor at Santa Clara University School of Law and Executive Director of the Northern California Innocence Project and the Veritas Initiative.

Morton was wrongfully convicted of murdering his wife and spent nearly 25 years in prison before his release in October. Among the suppressed evidence was a police transcript of the victim’s mother saying that the Mortons’ three-year-old son, who witnessed the murder, told her that his father was not at home at the time; a report from a neighbor observing someone outside the Mortons’ house before the murder; and a report on the recovery of the victim’s Visa card, which a woman had attempted to use fraudulently at a store in San Antonio two days after her murder.

Texas Supreme Court Justice Wallace Jefferson has ordered a court of inquiry to investigate possible prosecutorial misconduct by former Williamson County prosecutor Ken Anderson in his prosecution of Michael Morton. The Innocence Project, which represented Morton, discovered that evidence of Morton’s innocence was withheld from the defense at his original trial in 1987 and called for the court of inquiry to review the prosecution’s conduct in the case.

“What’s clear from this data is that we’re not doing nearly enough to document the scope of the problem and the disciplinary systems as they currently exist are vastly inadequate,” Ridolfi said.

In the Connick decision, an ideologically divided Supreme Court stripped a $14 million award from a wrongfully convicted man who had spent 14 years on death row and successfully sued New Orleans prosecutors for misconduct. Conservative justices prevailed in the 5 to 4 ruling, which shielded the district attorney’s office from liability for not turning over evidence that showed John Thompson’s innocence.

Where is the citizen outrage? It doesn’t yet exist as a consistent source of pressure. In many cases, complaints have to be made to the very people who are the subjects of the complaints. State and Federal lawmakers don’t find that the subject generates interest or press releases. And the mainstream media has generally ignored the issue, except when the subject has a high profile and is likely to attract readers and viewers.

One such case involved the alleged corruption of former Alaska Senator Ted Stevens. Stevens, who died in a 2010 plane crash, was convicted in 2008. But the Department of Justice revealed that its own lawyers unlawfully withheld exculpatory evidence from the defense.

The mistakes made by prosecutors handling the Stevens trial not only cost the government the case – the report based on its investigation cost taxpayers close to a million dollars. It concluded that prosecutors had engaged in serious misconduct.

But with seemingly ever-increasing numbers of well-publicized exonerations of people who were wrongfully imprisoned, coupled with the national scandals surrounding trials such as the Stevens case, ordinary citizens may be coming to understand the tremendous power that prosecutors wield, the frequency with which they abuse that power, and the virtually uniform lack of both the tools and the will to make them accountable.